Sexual exploitation laws need revising

Jeremy Patrick
For The Calgary Herald

Monday, June 19, 2006

When a 19-year-old Tim Hortons employee has consensual sex with the new 17-year-old employee she has been asked to show around and train, should this be considered normal teenage dating or a serious felony warranting several years behind bars?

Under a provision of the Criminal Code amended last year, it is a straightforward case of "sexual exploitation" punishable by up to 10 years in prison.

For several years now, Canada has had legislation making it illegal for persons in positions of "trust" (such as a parent figure) or "authority" (such as a work supervisor) to have sex with a young person between the ages of 14 and 17.

The rationale for the law is that young persons are unable to truly consent to sex when there is a high degree of dependency or power imbalance in the relationship.

Last year, Parliament expanded this legislation by adding a new catch-all category of "relationship(s) with a young person that is exploitative of the young person."

The legislation gave a long list of factors that could be examined in deciding whether a relationship is exploitative, including "the evolution of the relationship" and "the degree of control or influence by the person over the young person."

Canada's age of consent has been 14 for several decades. Recently, the Harper government announced its intention to raise the age of consent from 14 to 16, possibly with an exemption for people no more than five years apart in age. If Parliament does introduce new legislation, the current law around "sexual exploitation" needs to be completely revised.

The first problem is the law does not define what it means by a relationship of "trust." We can easily think of examples that fit the concept: parents, babysitters, perhaps camp counsellors.

The difficulty arises, however, when we try to apply the law to all-too-common relationships that aren't so intuitively wrong, such as family friends, older co-workers, tutors, and more.

In my study of published court decisions attempting to apply the "trust" element of "sexual exploitation," I found widespread confusion in the courts over how to go about the business of deciding what is allowed and what isn't. One trial judge, for example, said "I defy anyone, any legally trained person to come up with a workable definition of trust . . . It's impossible to . . . state what a position of trust is or what the Supreme Court of Canada seems to feel a position of trust is."

The second problem with the law is that last year's amendments added an incredibly broad, but vague catch-all collection of factors that could be used by a court to determine that a relationship is "exploitative." If we are to look at "the evolution of the relationship," for example, is it more or less exploitative for sex to occur after a long friendship or romance?

If we look at the age difference between the parties, are we creating a crime out of society's moralistic tendency to look disapprovingly at age differences in general (such as frequently demonstrated in celebrity relationship gossip)? The catch-all category of "exploitative" relationships creates another problem as well. It allows, and indeed requires, police officers, prosecutors, and judges to conduct a searching inquiry into the intimate details of every relationship involving an adult and a person between the ages of 14 and 17.
This might seem perfectly legitimate when we find a 40-year-old man is having sex with a 14-year-old girl. But because of the way the law is written, it also means that when a 19-year-old female has sex with a 17-year-old boy, we've left it in the hands of the criminal justice system to declare it "exploitative" and send the older teenager to prison.

The only sensible solution is to return to the recommendations of the government's 1984 Committee on Sexual Offences Against Children and Youth (generally known as the Badgley Report).

Instead of criminalizing relationships on the basis of vague terms such as "trust" or creating a list of factors, the Badgley Report recommended that certain categories of relationships be conclusively presumed to be exploitative when a young person is involved, such as parent-child, teacher-student, and employer-employee.

The benefits of having a list of prohibited relationships is that it provides fair notice to adults contemplating relationships with young persons and makes it far easier for the criminal justice system to determine whether such relationship is criminally exploitative.

If a bill to raise the age of consent is introduced in Parliament, it will be the ideal time to revisit and thoroughly revise the Criminal Code's currently incoherent offence of "sexual exploitation."

Jeremy Patrick is a law professor whose article Sexual Exploitation and the Criminal Code is forthcoming in the Alberta Law Review.